Robert John Metcalfe v Solicitors Regulation Authority Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 10 August 2021 |
| Neutral Citation | [2021] EWHC 2271 (Admin) |
| Docket Number | Case No: CO/4320/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2271 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM THE SOLICITORS DISCIPLINARY TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Murray
Case No: CO/4320/2019
Mr Martin Budworth (instructed by Dallas & Richardson Solicitors LLP) for the Appellant
Mr Rory Mulchrone (instructed by Capsticks LLP) for the Respondent
Hearing date: 19 January 2021
Approved Judgment
I direct that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Murray
This is an appeal by the appellant, Mr Robert John Metcalfe, under section 49(1) of the Solicitors Act 1974 against an order of the Solicitors Disciplinary Tribunal (“the SDT”) dated 20 September 2019 (“the Order”) striking him off the roll of solicitors and making a costs order against him. The Order was made after a hearing by the SDT on 16–20 September 2019 of an application dated 29 April 2019 by the Solicitors Regulation Authority (“the SRA”) pursuant to Rule 5(1) of the Solicitors (Disciplinary Proceedings) Rules 2007 SI 2007/3588 (“the 2007 Rules”).
At all relevant times, including at the hearing of this appeal, the SRA formed part of the Law Society. The functions of the SRA have since, on or about 17 June 2021, been assumed by a separate legal entity, Solicitors Regulation Authority Limited, a company limited by guarantee (company registration number 12608059). This includes the SRA's role as respondent to this appeal.
By this appeal, Mr Metcalfe seeks to challenge two findings of dishonesty against him made by the SDT, as set out in the judgment of the SDT handed down on 14 October 2019 (“the Judgment”), which sets out the SDT's reasons for making the Order.
In summary, Mr Metcalfe appeals against the Order on three grounds, namely, that:
i) the SDT was wrong to make any findings of dishonesty against him;
ii) in any event, the sanction of striking-off was disproportionate and too severe; and
iii) in exercising its discretion to award costs to the SRA, the SDT exceeded the ambit within which reasonable disagreement is possible.
Mr Metcalfe was born in 1971 and was admitted to the roll of solicitors on 15 September 2000 after completing his training at Hill Dickinson LLP, during which he had undertaken a six-month seat in the Commercial and Conveyancing Department. Upon qualification, he worked at BLM in Liverpool, then The Price Partnership, and then Hampson Hughes Solicitors.
In April 2013, Mr Metcalfe left Hampson Hughes Solicitors to set up his own practice as a sole principal under the style of RMJ Solicitors (612988) (“the Firm”). At the relevant times, the Firm's offices were at Horton House, Exchange Flags, Liverpool L2 3PF. Mr Metcalfe specialised in the following areas: (i) residential landlord and tenant; (ii) general litigation; and (iii) personal injury.
The allegations
At the hearing before the SDT, Mr Metcalfe faced twelve allegations, set out in a statement made by the SRA pursuant to Rule 5(2) of the 2007 Rules (“the Rule 5 Statement”).
The SRA alleged that, during the period commencing on or about April 2014 to March 2017 (“the Relevant Period”), he had committed various breaches of the SRA Principles 2011 (“the 2011 Principles) and the SRA Accounts Rules 2011 (“the 2011 Accounts Rules”), as well as a breach of Rule 8.5 of the SRA Authorisation Rules 2011. These allegations were numbered 1.1 to 1.10.
At the conclusion of the hearing, the SDT found that:
i) allegations 1.1, 1.3, 1.4, 1.5, 1.6 (in part), 1.9 and 1.10 were proved beyond reasonable doubt;
ii) allegations 1.2, allegation 1.6 (in part), allegation 1.7 and allegation 1.8 were not proved and were therefore dismissed.
Allegation 1.1 was that, during the Relevant Period, Mr Metcalfe acted, or purported to act, in relation to a number of investment schemes, loans or other transactions (“the Loan and Investment Scheme transactions”), which were dubious, risky or bore the hallmarks of early release pension scams, and by doing so breached any or all of Principles 2, 4, 6 and 10 of the 2011 Principles.
Allegation 1.3 was that, during the Relevant Period, Mr Metcalfe acted in relation to, and/or facilitated through client account, the back-to-back sale and purchase of shares in a Gibraltar-based company named Priority Solutions Limited (“the Back-to-Back Share Sale transactions”) in circumstances where such transactions were dubious, risky or bore the hallmarks of fraudulent financial arrangements, and by doing so breached any or all of Rules 14.5 and 29.2 of the 2011 Accounts Rules and any or all of Principles 2, 4, 6 and 10 of the 2011 Principles.
Allegations 2 and 3 of the Rule 5 Statement made it clear that allegations 1.1 and 1.3 were advanced on the basis that Mr Metcalfe's conduct was dishonest or, alternatively, reckless. Dishonesty or, alternatively, recklessness was alleged in each case as an aggravating feature of Mr Metcalfe's misconduct, rather than as an essential ingredient in proving either of those allegations.
The SDT found that not only had allegation 1.1 and allegation 1.3 been proved beyond reasonable doubt, but also that allegation 2 had been proved beyond reasonable doubt, namely, that Mr Metcalfe's conduct had been dishonest in each case. Given its findings of dishonesty, the SDT did not consider it necessary to determine allegation 3, namely, whether Mr Metcalfe's conduct had been reckless in either case.
On his first ground of appeal, Mr Metcalfe contests only the findings of dishonesty on allegation 2 in relation to each of allegations 1.1 and 1.3. He does not contest the underlying findings that allegations 1.1 and 1.3 had been proved beyond reasonable doubt.
In the Judgment, the names of various companies and individuals involved in the factual background to this matter were anonymised in accordance with the normal practice of the SDT. There is, however, no need to do so on appeal. See, for example, Solicitors Regulation Authority v Sheikh [2020] EWHC 3062 (Admin) (Davis LJ).
Background
According to Mr Metcalfe's witness statement dated 27 August 2019 provided for the hearing before the SDT, in February/March 2016 the Firm's personal injury department was comprised of Mr Metcalfe and four employees. About that time, Mr Metcalfe found out that two of his fee-earners were setting up a firm in competition with him and would take with them his two remaining personal injury fee-earners. When he discovered their plan, he made all four of them leave the Firm immediately. This, however, left him in the position of having lost overnight all of his personal injury fee-earners. At about the same time, his accounts consultant also left the Firm, leaving the Firm's financial accounting records in disorder. Mr Metcalfe then employed another individual to put the accounting records in order, but that apparently did not happen.
Further background is set out in some detail in the Judgment at paragraphs 7–11. For present purposes, I make the following summary.
On 20 January 2017, the SRA commenced an investigation of the Firm. On 17 February 2017, Ms Lindsey Barrowclough, Investigation Officer – Forensic Investigations for the SRA, issued her interim forensic investigation report. On 22 February 2017, the SRA disclosed to Mr Metcalfe a copy of a report recommending that there be an intervention in the Firm, so that he could make representations.
On 10 March 2017, the SRA decided to: (i) exercise its statutory powers to intervene in the Firm on the basis that there was reason to suspect dishonesty by Mr Metcalfe in connection with his practice as a solicitor; and (ii) refer Mr Metcalfe's conduct to the SDT. Shacklocks Solicitors LLP (“Shacklocks”) was appointed to act as the SRA's agent in respect of the intervention.
On 14 March 2017, Shacklocks carried out the intervention.
On 29 June 2017, Ms Barrowclough conducted an interview with Mr Metcalfe, following this with a number of written interrogatories.
On 8 March 2018, Ms Barrowclough issued her final Forensic Investigation Report (“the Final Report”), identifying various alleged breaches of the 2011 Principles, the 2011 Accounts Rules and the SRA Authorisation Rules 2011 and failures to achieve outcomes under the SRA Code of Conduct 2011.
On 29 April 2019, the SRA applied to the SDT under Rule 5(1) of the 2007 Rules that Mr Metcalfe be required to answer the allegations set out in the Rule 5 Statement. The SRA's case was set out in the Rule 5 Statement, to which were exhibited a number of supporting documents, including Ms Barrowclough's interim report and the Final Report.
Mr Metcalfe provided an Answer to the Rule 5 Statement, which is undated (“the Rule 5 Answer”). He also provided his witness statement dated 27 August 2019.
The hearing before the SDT took place, as already noted, on 16–20 September 2021 before a panel of three members of the SDT, one lay member and two solicitor members. Mr Metcalfe was represented at the hearing by Mr Martin Budworth, of counsel, who represents him on this appeal. The SRA was represented by Mr Rory Mulchrone, of counsel, who is employed by the SRA's solicitors, Capsticks LLP. Mr Mulchrone prepared the Rule 5 Statement. He represents the SRA on this appeal.
By the time of the hearing before the SDT in September 2019, Mr Metcalfe no longer held a current practising certificate but remained on the roll of solicitors as a non-practising...
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